September 21, 1979

79-69 MEMORANDUM OPINION FOR THE

GENERAL COUNSEL, DEPARTMENT OF

DEFENSE

National Guard—Technician Dress and Grooming

Regulations—Executive Order No. 11491—Review

of Decisions of Federal Labor Regulations

Authority

This responds to your request for the opinion of the Department of 

Justice concerning Federal Labor Relations Council (Council) decisions 

on the negotiability of National Guard technician dress-and-grooming 

regulations. The question arose in administrative proceedings instituted by 

labor organizations on behalf of the technicians. Accompanying the request was a petition to the Attorney General from the Adjutants General 

of the 50 States, the Virgin Islands, Puerto Rico, and the District of Columbia, and a memorandum in support of their position that the Council’s 

decisions are without legal support. As framed in that memorandum, the 

questions on which our opinion is requested are whether the Council has 

jurisdiction to direct negotiations concerning a military regulation applicable only to National Guard technicians and promulgated pursuant to 

statute by the Department of Defense, and, if so, whether the Council applied an invalid standard of review and thus erroneously determined that 

the regulation is negotiable.

In our view; the Council did have jurisdiction to determine the 

negotiability of the regulation in question. Although the method for appealing its decisions is disputed, it does appear that administrative and 

judicial remedies are available to the dissatisfied party. It would be inappropriate under these circumstances for us to comment on the second 

question.

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The Background

Executive Order No. 11491 was issued in 1969 to govern labor-management relations in the executive branch of the Federal Government.' It 

established the Federal Labor Relations Council to administer and interpret the order2 and the Federal Service Impasses Panel (Panel) to settle 

negotiation impasses.3 It also set forth guidelines for negotiation o f collective bargaining agreements.4 Section 11(a), as amended prior to 1979, provided:

(a) An agency and a labor organization that has been accorded exclusive recognition, through appropriate representatives, shall meet at reasonable times and confer in good faith 

with respect to personnel policies and practices and matters affecting working conditions, so far as may be appropriate 

under applicable laws and regulations, including policies set 

forth in the Federal Personnel Manual; published agency 

policies and regulations for which a compelling need exists 

under criteria established by the Federal Labor Relations 

Council and which are issued at the agency headquarters level 

or at the level of a primary national subdivision; a national or 

other controlling agreement at a higher level in the agency; and 

this order.5

Generally, the procedures for settling disputes as to negotiability were as 

follows: if an issue developed whether a proposal was negotiable, either 

party could seek a determination from the head of the agency concerned.6 

If the agency head determined an issue was not negotiable, a labor 

organization could appeal this determination to the Council. If, after a 

Council decision, the parties were unable to settle their differences, either 

party could request the Federal Service Impasses Panel to consider the 

matter.8 Failure to obey a Panel order directing settlement was an unfair 

labor practice9 and a complaint could be filed with the Assistant Secretary 

of Labor for Labor-Management Relations.10 The Assistant Secretary’s

'This order was amended by Executive Orders Nos. 11616, 11636, 11838, 11901, 12073, 

12107, and 12126. Executive Orders Nos. 12107 and 12126 conformed the order to the procedures established by the Civil Service Reform Act o f 1978, 5 U.S.C. §§ 7101-7135. Unless 

otherwise specified, all citations to Executive Order No. 11491 refer to the order as amended 

prior to Executive Order No. 12107.

’Exec. Order No. 11491, § 4.

’Exec. Order No. 11491, § 5.

*Exec. Order No. 11491, § 11.

’This version o f § 11(a) appears in Executive Order No. 11838 (Feb. 6, 1975).

‘Exec. Order No. 11491, § 11(c)(2).

’Exec. Order No. 11491, § 11(c)(4).

'Exec. Order No. 11491, § 17.

’Exec. Order No. 11491, § 19(a)(6).

'“Exec. Order No. 11491, § 6(a)(4).

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decision could be appealed to the Council." A party dissatisfied with the 

Council’s decision on the unfair labor practice could seek relief in a 

Federal district court.12

Title VII of the Civil Service Reform Act, 5 U.S.C. §§ 7101-7135, revised these procedures, but did not affect matters pending as of January 

11, 1979, the effective date of the A ct:13

No provision of this Act shall affect any administrative proceedings pending at the time such provision takes effect. Orders 

shall be issued in such proceedings and appeals shall be taken 

therefrom as if this Act had not been enacted.14

The Council and the Panel have considered numerous cases on the negotiability of the National Guard technician dress and grooming regulations. 

National Guard technicians are civilians employed full-time for the administration and training of the National Guard and the maintenance and 

repair of supplies issued to the National Guard or the Armed Forces.15 

Technicians must be members of the National G uard.16 They are 

employees of the Department of the Army or the Department of the Air 

Force,17 but technician employment and administration are delegated by 

the Secretaries of these departments to the Adjutants General of the States 

and territories.1*

Pursuant to regulatory authority,19 the Secretaries of the Army and the 

Air Force have required National Guard technicians to wear military 

uniforms when performing technician duties, and to comply with grooming standards of the appropriate service.20 Controversy arose when 

bargaining units of the National Guard technicians proposed amendments 

to modify the requirement that uniforms be worn. When National Guard 

officials refused to negotiate the matter, the unions, following the procedures of Executive Order 11491, requested a determination from the 

head of the National Guard Bureau. In each case, he determined that 

negotiation was barred by Bureau regulations. Thereafter, the unions petitioned the Council for review. They argued that negotiation is not barred

"Exec. O rder No. 11491, § 4(c)(1).

11See, e.g., Montana Chapter o f Assoc, o f Civ. Tech., Inc. v. Young, 514 F.(2d) 1165, 

1168 (9th Cir. 1975); National Treasury Employees Union v. Fasser, 428 F. Supp. 295, 297 

(D .D .C. 1976).

'T h e section specifying the effective date is Civil Service Reform Act o f 1978, Pub. L. No. 

95-454, § 907.92 Stat. 1227.

“ Civil Service Reform Act o f 1978, Pub. L. No. 95-454, § 902(b), 92 Stat. 1224, 5 U.S.C. 

§ 1101 note.

"32 U.S.C. § 709(a).

“ 32 U.S.C. § 709(b).

'’32 U.S.C. § 709(d).

"32 U.S.C. § 709(c).

'’32 U.S.C. § 709(a), relating to the employment o f National G uard technicians. 

’“Technician Personnel Manual 200 (213.2), Subchapter 2-4, provides in part: “ Technicians in the excepted service will wear the military uniform appropriate to their service and 

federally recognized grade when performing technician duties and will comply with uniform 

standards of the services.”

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because, one, the regulation was not issued at or above the level of a 

primary national subdivision of the agency, and two, no compelling need 

for the regulation exists. The Council found that the National Guard 

Bureau is a primary national subdivision of the Department of Defense 

within the meaning of section 11(a) of the order, but that no compelling 

need existed for the regulations in question.21 It decided, therefore, that 

the proposals of the union were subject to negotiation.

In most of these cases, the parties still could not reach an agreement. 

The unions requested the Federal Service Impasses Panel to consider the 

negotiation impasses. The Panel issued recommendations that the parties 

adopt language in their agreements that the employees should have the option of wearing either a uniform or an agreed-upon standard civilian attire, and that the parties should agree upon exceptions to cover occasions 

on which the wearing of the military uniform may be required.22 When 

these suggestions were rejected, the Panel issued orders directing the parties to adopt the Panel’s recommended language in their agreements.23 

Some of these cases are still pending before the Panel.

Discussion

It is our opinion that the Council had the authority under Executive 

Order No. 11491 to determine the negotiability of the dress-and-grooming 

regulations. That order explicitly gave the Council authority to resolve 

negotiability disputes.24 It applied, with certain exceptions, to all 

employees and agencies of the executive branch.25 It does not appear to us 

that any of the exceptions are relevant here. The Adjutants General contend that the exception provided in §. 3(b)(3) of the order removes them 

from its application. This section provides:

(b) This Order * * * does not apply to—

(3) any other agency, or office, bureau, or entity within an 

agency, which has as a primary function intelligence, investigative, or security work, when the head of the agency determines, in his sole judgment, that the Order cannot be applied 

in a manner consistent with national security requirements and 

considerations * * * .

’'See Council Consolidated Decision on Negotiability Issues, Nos. 76A-16, 76A-17, 

76A-40, 76A-43, 76A-54 (Jan. 19, 1977); Consolidated Decision on Negotiability Issues, 

Nos. 76A-75, 76A-76, 76A-84 (Jan. 19, 1977).

11 See, e.g.. Panel Reports and Recommendations for Settlement, In the Matter o f State o f

New York and New York Council Assoc, o f Civilian Tech. Inc., 78 FSIP 32 (Sept. 28, 1978); 

In the Matter o f Penn. National Guard and Penn. State Council Assoc, o f Civilian Technicians, Inc., 77 FSIP 29 (Jan. 20, 1978); In the Matter o f Kansas Army Nat ’I Guard and Local

RI4-S7, N at’l Assoc, o f Gov't Employees, 77 FSIP 30 (Nov. 2, 1977); In the Matter o f Mass.

Air National Guard and Local 3004, AFL-CIO, 77 FSIP 18 (Aug. 26, 1977).

’’See, e.g., Decisions and Orders, In the Matter o f Mass. Army N at’l Guard and Local

1629, N at’l Federation o f Federal Employees, 77 FSIP 31 (Aug. 22, 1978); In the Matter o f

Oregon Arm y/Air N at’l Guard and Local 2986, AFL-CIO, 77 FSIP 53 (Aug. 22, 1978); In

the Matter o f California N at’l Guard and Local RI2-I05, N at’l Assoc, o f G ov’t Employees,

77 FSIP 70 (April 13, 1977).

“ Exec. Order No. 11491, §§ 4(c)(2), 11(c)(4).

’’Exec. Order No. 11491, §§ 2(a), 3(a).

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The Adjutants General reason that they, as heads of their agencies, have 

determined that the wearing of the uniform by the technicians is required 

as a matter o f security and that this determination cannot be reviewed by 

the Council because it is left to the “ sole judgm ent” of the agency head. 

We disagree because the National Guard does not have as its primary 

function “ intelligence, investigative or security w ork.” The primary function of the National Guard is to maintain and assure the strength and 

organization of reserve components of the Armed Forces.26 This is not the 

type of security work excepted from the order. The maxim noscitur a

sociis (a word is known by the company it keeps) applies here to limit the 

term “ security work” to the type of work associated with intelligence and 

investigative w ork.27

Whether the Council applied an invalid standard of review is not a matter for the Department of Justice to determine. Under the order, the 

Council is the final administrative authority.28 There is no right to appeal 

to the Attorney General, and it would be inappropriate for the Department of Justice to comment on the decision.29 The right of appeal lies elsewhere. Issues arising out of the controversy now are pending before the 

Federal Labor Relations Authority30 and at least one Federal court.31 

There is a long line of opinions of the Attorneys General to the effect that 

it is not proper to express an opinion upon a judicial question that is pending in, or must ultimately be decided by, the courts.32 Accordingly, we 

decline to comment on the Council’s decisions in these cases.

L e o n U l m a n

D eputy Assistant Attorney General

Office o f Legal Counsel

“ 32 U.S.C. § 102. Section 709(e)(2) deals with the military security standards applicable to 

individual members o f a reserve component. It does not define the primary function of the 

National Guard.

Cf., Third N at’l Bank v. Impac. Limited, Inc. 432 U.S. 312 (1977), Jarecki v. G.D.

Searte & Co.. 367 U .S. 303, 307 (1961).

“ Exec. O rder No. 11491, § 11(c)(4).

"See 11 Op. A tt’y Gen. 407, 408 (1865); 10 Op. A tt’y Gen. 347, 349 (1862); 6 Op. A tt’y 

Gen. 289 (1854).

“ The Federal Labor Relations Authority was created by the Civil Service Reform Act of

1978, 5 U.S.C. § 7105. It is the “ successor” to the Council. Section 7123 o f the Act provides 

for judicial review of final orders of the Authority.

"See, Nevada N at’l Guard v. United States, No. 79-7235 (9th Cir., filed May 31, 1979). 

"See, e.g., 41 Op. A tt’y Gen. 266, 272 (1956); 37 Op. A tt’y Gen. 34, 42 (1932); 33 Op. 

A tt’y Gen. 86, 87 (1922).

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